HHS Baselessly Disapproves FSIP Arbitration Decision

FSIP Member Marvin E. Johnson, Esq.
Marvin E. Johnson, Esq.

Last month, I shared with you that an arbitrator from the Federal Service Impasses Panel (FSIP) issued a favorable decision regarding the negotiation impasse between NTEU and the Department of Health and Human Services (HHS) over the ground rules that will govern the parties’ term negotiations for the consolidated collective bargaining agreement (CBA). There were two issues at impasse: the bargaining schedule and the payment of travel and per diem for NTEU’s bargaining team. On the issue of the bargaining schedule, Member Marvin Johnson adopted a modified version of NTEU’s last best offer, stating the union’s proposal “logically ties the number of weeks of bargaining to the number of articles opened.” He ruled that bargaining will be conducted for 14 weeks if the parties opened 30 or fewer articles in total, and for 18 weeks if the parties opened 31 or more articles in total. He also directed the parties to commence bargaining no later than 30 days after they exchange written proposals, which the parties had agreed would be on the 30th day following receipt of this decision. He also directed that the parties exchange written proposals on February 3, 2017, and commence bargaining within 30 days of that date.

United States Federal Labor Relations Authority (seal)Rather than proceed to the table in accordance with Member Johnson’s order, HHS took steps to circumvent the FSIP award and further delay bargaining. On January 31, 2017, HHS notified NTEU that, upon agency head review, it disapproved the bargaining schedule provisions in the FSIP decision alleging the order “violated law, rule or regulation.” The agency did not provide any explanation or citation to support the claim. NTEU believes this is yet another deliberate effort by the agency to delay bargaining and entangle the parties in frivolous litigation, wasting taxpayer money in the process. It is clear that the agency has no interest in negotiating an improved CBA to benefit employees. Accordingly, NTEU will immediately file a negotiability petition and an unfair labor practice (ULP) charge with the Federal Labor Relations Authority (FLRA). Unfortunately, negotiations between the parties will not commence until the FLRA has ruled.

I welcome your questions and comments on this subject.